Citation Nr: 0902931
Decision Date: 01/28/09 Archive Date: 02/09/09
DOCKET NO. 05-28 748 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an effective date prior to January 12,
2004 for a 10 percent evaluation for the residuals of a right
angle mandible fracture to include a surgical scar.
2. Entitlement to special monthly compensation (SMC).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The veteran had active service from November 1965 to November
1967.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the Philadelphia,
Pennsylvania, regional office (RO) of the Department of
Veterans Affairs (VA).
The veteran appeared at a hearing before the undersigned
Veterans Law Judge at the RO in October 2008. A transcript
of the hearing is in the claims folder. Testimony was
primarily on the first issue on the title page. Review of
the claims file reveals that issue 2 has also been developed
for review at this time and is included in this decision.
FINDINGS OF FACT
1. The September 2002 rating decision that denied
entitlement to an increased evaluation for the residuals of a
right angle mandible fracture to include a surgical scar is
final.
2. The veteran's new claim for an increased evaluation for
the residuals of a right angle mandible fracture to include a
surgical scar was received on January 12, 2004.
3. The medical evidence does not demonstrate that the
increase in severity of the veteran's jaw disability occurred
in the one year prior to receipt of his claim.
4. The medical evidence on which entitlement to an increased
evaluation for the veteran's right jaw disability was based
is dated subsequent to the January 12, 2004 claim.
5. The veteran has a single service connected disability
evaluated as 10 percent disabling.
6. The veteran is not in need of regular aid and attendance,
is not housebound, and is not service connected for and does
not have loss of use of a hand or foot, or loss of both
buttocks, one or more creative organs, blindness of one eye,
deafness of both ears, or complete organic aphonia.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to January 12,
2004 for a 10 percent evaluation for the residuals of a right
angle mandible fracture to include a surgical scar have not
been met. 38 U.S.C.A. §§ 7105, 5107(b) (West 2002);
38 C.F.R. §§ 3.105(a), 3.400 (2008).
2. The criteria for entitlement to special monthly
compensation have not been met. 38 U.S.C.A. §§ 1114, 5107(b)
(West 2002); 38 C.F.R. §§ 3.350, 3.352(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations imposes obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. § 5103(a)
(West 2002); C.F.R. § 3.159(b)(1) (2008). Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The Board notes that 38 C.F.R. 3.159 was recently amended to
eliminate the requirement that VA request that a claimant
submit any evidence in his or her possession that might
substantiate the claim. 38 C.F.R. § 3.159 (2008).
In Pelegrini, the United States Court of Appeals for Veterans
Claims (Court) held that VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable adjudication by the RO.
The Court has also held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006). The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must inform a claimant that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the veteran's claim for an earlier effective date, he was
provided with information as to the evidence VA was
responsible for obtaining and the evidence he was to submit,
as well as information pertaining to the establishment of
effective dates in an April 2008 letter. Although the
veteran was able to provide testimony to the Board following
the receipt of this information, his claim has not been
readjudicated since that time. However, any deficiencies in
the notification for the effective date appeal are not
prejudicial to the veteran's claim. In Dingess v. Nicholson,
the Court held that "the statutory scheme contemplates that
once a decision awarding service connection, a disability
rating, and an effective date has been made, [VCAA] notice
has served its purpose, and its application is no longer
required because the claim has already been substantiated."
Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).
Furthermore, the Board observes that the Court has held that
even the failure to comply with the notice requirement of the
VCAA is not prejudicial to the veteran if, as here, based on
the facts alleged, no entitlement exists. See Valiao v.
Principi, 17 Vet. App. 229, 232 (2003). In addition, the
Court has held that a veteran claiming entitlement to an
earlier effective date is not prejudiced even by failure to
provide him a VCAA notice of the laws and regulations
governing effective dates, if, based on the facts of the
case, entitlement to an earlier effective date is not shown
as a matter of law. See Nelson v. Principi, 18 Vet. App.
407, 410 (2004). In light of the foregoing, the Board finds
that no further notice or assistance to the veteran is
required to fulfill VA's duty to assist him in the
development of the claim. Smith v. Gober, 14 Vet. App. 227
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001). The Board will thus
proceed with the consideration of this case.
In regards to the claim for SMC, the veteran was provided
with a February 2005 letter which contained information as to
the evidence VA was responsible for obtaining and the
evidence he was to submit. The letter also explained what
the evidence must show in order to establish entitlement to
SMC. The veteran received this letter prior to the initial
adjudication of his claim in May 2005. Therefore, the duty
to notify has been met for this issue.
Finally, the Board finds that the duty to assist the veteran
in obtaining all relevant evidence has been met. There is no
indication that there are any VA or private medical records
which have not been obtained that would be relevant to the
veteran's claims. As previously noted, the veteran offered
testimony regarding his claims at the November 2008 hearing,
and his testimony has been considered in reaching this
decision. The duty to assist has been completed, and the
Board will proceed with adjudication of the veteran's claim.
Earlier Effective Date
The veteran contends that he is entitled to an effective date
prior to January 12, 2004 for the 10 percent evaluation for
his service connected residuals of a right angle mandible
fracture to include a surgical scar. He believes that the 10
percent evaluation should be effective from January 2001,
which is when he submitted a prior claim for an increased
evaluation. He argues that the VA examination that was
provided to him in conjunction with this claim was lost and
therefore not considered by the September 2002 rating
decision which denied an increased evaluation. He believes
that the September 2002 rating decision is not final, and
that his January 2001 claim is still open.
The Board will first examine whether or not the September
2002 rating decision cited by the veteran is final. For the
reasons cited below, the Board determines that this decision
was final.
The record shows that when the veteran's January 2001 claim
for an increased evaluation was received, he was living in
New Jersey. This address was contained in the claim. A
letter inquiring about the status of the claim dated August
20, 2002 was also received from the veteran. He again
provided the same address in New Jersey. There is no
indication that he notified VA of a change in address.
The veteran was denied entitlement to a compensable
evaluation in the September 2002 rating decision. The
veteran was notified of this decision and provided with his
appellate rights in a letter dated September 13, 2002, which
was mailed to the same New Jersey address provided by the
veteran in January 2001 and August 2002. There is no
indication that this letter was returned to the VA as
undeliverable.
The next communication from the veteran was received on
January 12, 2004. He indicated that he wished to appeal the
decision he received in January 2003. The veteran's return
address was now in a different city in New Jersey.
The RO declined to accept this letter as a notice of
disagreement, as it was dated more than a year after the
September 13, 2002 letter of notification.
The Board agrees that the letter received on January 12, 2004
is not a notice of disagreement with the September 2002
rating decision, and that this rating decision is final.
Except in the case of simultaneously contested claims, a
claimant, or his or her representative, must file a notice of
disagreement with a determination by the agency of original
jurisdiction within one year from the date that that agency
mails notice of the determination to him or her. Otherwise,
that determination will become final. The date of mailing
the letter of notification of the determination will be
presumed to be the same as the date of that letter for
purposes of determining whether an appeal has been timely
filed. 38 C.F.R. § 20.302(a).
In this case, there is some indication that the veteran had a
change of address sometime between August 2002 and January
2004. However, the evidence is clear that the veteran
received notification of the decision no later than January
2003. As noted, there is no indication that the September
13, 2002 letter was returned as undeliverable, and the
veteran does not deny having received this letter.
Therefore, the September 13, 2002 letter was apparently
forwarded to the veteran. The veteran had one year from the
date of this letter to submit a notice of disagreement, and
the fact that he may not have received the letter until
January 2003 does not extend the one year period. Instead,
the veteran delayed sending a notice of disagreement until
January 7, 2004, which was clearly more than one year after
the date of the receipt of notification of the September 2002
rating decision, and may well have been received more than
one year after he states he received the notification in
January 2003. Therefore, as the veteran did not submit a
timely notice of disagreement, the September 2002 rating
decision is final, and is not subject to revision on the same
factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a).
The Court has held that once a rating decision which
establishes an effective date becomes final, the only way
that such a decision can be revised is if it contains clear
and unmistakable error. The Court notes that any other
result would vitiate the rule of finality. In other words,
the Court has found that there are no freestanding claims for
an earlier effective date. Rudd v. Nicholson, 20 Vet. App.
296, 299-300 (2006).
In this case, the veteran has not raised a claim for clear
and unmistakable error in the September 2002 rating decision.
Instead, he contends that this rating decision was not final.
As has already been discussed, the Board finds that this
decision was final. However, the Board may still examine the
August 2004 rating decision that increased the evaluation for
the veteran's jaw disability to 10 percent and the November
2007 rating decision that changed the effective date from
January 13, 2004 to January 12, 2004 in order to determine
whether or not there may be a basis for an earlier effective
date.
Although the letter received from the veteran on January 12,
2004 was not accepted as a notice of disagreement, it was
accepted as a new claim. On the basis of this claim, an
August 2004 rating decision increased the evaluation for the
veteran's disability to 10 percent, effective from January
13, 2004. A November 2007 rating decision noted that the
initial date stamp on the veteran's letter was January 12,
2004, and found that this was the proper effective date for
the 10 percent rating.
In general, the effective date of an evaluation and award of
pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is the later. 38 C.F.R. § 3.400.
The effective date of an increase in disability compensation
is the earliest date as of which it is factually
ascertainable that an increase in disability had occurred if
the claim is received within one year from such date.
Otherwise, the effective date is the date of receipt of the
claim. 38 C.F.R. § 3.400(o)(2).
If an increase in disability occurred within one year prior
to the claim, the increase is effective as of the date the
increase was "factually ascertainable." If the increase
occurred more than one year prior to the claim, the increase
is effective the date of claim. If the increase occurred
after the date of claim, the effective date is the date of
increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet.
App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98
(1998). In making this determination the Board must consider
all of the evidence, including that received prior to
previous final decisions. Hazan v. Gober, 10 Vet App 511
(1997).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the VA shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107(b).
The veteran's jaw disability is evaluated by analogy to the
rating code for malunion of the mandible. This rating code
provides for evaluations between zero and 20 percent, and is
based on the degree of motion and relative loss of
masticatory function of the mandible. See 38 C.F.R. §§ 4.20,
4.150, Code 9904 (2008).
The Board finds that the preponderance of the evidence is
against a finding that the veteran is entitled to an
effective date prior to January 12, 2004.
The record is devoid of any communications or medical records
that may service as an informal claim dated prior to January
12, 2004.
The medical evidence relied on by the August 2004 rating
decision was contained in an August 2004 VA examination. As
this was dated subsequent to the receipt of the claim, an
effective date from the receipt of the claim was assigned.
It was noted that there was some reported spasm, with normal
motion, but the rating was based on the complaints and some
likely limitation of function when the spasms occurred.
The record does not contain any medical evidence pertaining
to the veteran's jaw disability dated within the one year
prior to January 12, 2004. There is no medical evidence
dated between January 2003 and January 2004 for
consideration. The Board will not revisit the evidence
considered by the September 2002 rating decision. However,
the Board does note that neither the veteran's private
medical records dated through December 2001 nor the reported
findings of the September 2001 VA examination contain any
information regarding the masticatory function of the
mandible, and would not demonstrate that the criteria for a
10 percent evaluation had been met. Disfiguring scarring
from the surgery has not been noted.
Therefore, as the veteran's new claim was received on January
12, 2004, and as the evidence which supports entitlement to
an increased evaluation is dated subsequent to January 12,
2004, then the January 12, 2004 date of receipt of the claim
is the earliest effective date that may be assigned.
38 C.F.R. § 3.400(o)(2).
Special Monthly Compensation
The veteran has not made any specific contentions pertaining
to SMC.
SMC is payable where a veteran suffers from service-connected
disability that renders him permanently bedridden or so
helpless as to be in need of regular aid and attendance. 38
U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b).
Determinations as to the need for aid and attendance are
based on the actual requirements of personal assistance from
others. In determining the need for regular aid and
attendance, consideration will be given to the inability of
the veteran to dress or undress himself, or to keep himself
clean; frequent need of adjustment of any prosthetic which by
reason of the disability cannot be done without aid;
inability of the veteran to feed himself; inability to attend
to the wants of nature; or incapacity, physical or mental,
which requires care or assistance on a regular basis to
protect himself from the hazards or dangers of his daily
environment. Bedridden will be that condition which, through
its essential character, actually requires that the claimant
remain in bed. 38 C.F.R. § 3.352(a); see, e.g., Turco v.
Brown, 9 Vet. App. 222 (1996).
SMC provided by 38 U.S.C.A. § 1114(s) is also payable when
the veteran has a single service-connected disability rated
as 100 percent disabling and additional service-connected
disability or disabilities independently ratable at 60
percent, or when a veteran is permanently housebound by
reason of service connected disabilities. A veteran is
"housebound" when he is substantially confined to his
dwelling and the immediate premises or, if institutionalized,
to the ward or clinical area, and it is reasonably certain
that the disability and resultant confinement will continue
throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. §
3.350(i).
It is noted that, in order for the veteran to prevail in his
claim, the evidence must show that it is a service-connected
disability that has resulted in him being in need of regular
aid and attendance or being housebound. See Prejean v. West,
13 Vet. App. 444 (2000).
Under the applicable criteria, SMC under the provisions of 38
U.S.C.A. § 1114(k) is payable if a veteran, as the result of
service-connected disability, has suffered the anatomical
loss or loss of use of one foot or one hand. 38 C.F.R. §
3.350(a). SMC is also payable under 38 U.S.C.A. § 1114(k)
for loss of both buttocks, one or more creative organs,
blindness of one eye, deafness of both ears, or complete
organic aphonia.
The Board finds that the evidence does not support
entitlement to SMC.
The veteran is service connected for a single disability.
This is his residuals of a right angle mandible fracture to
include a surgical scar, and it is currently evaluated as 10
percent disabling. Therefore, he does not meet the schedular
criteria found at 38 U.S.C.A. § 1114(s).
The evidence does not show nor does the veteran contend that
he is permanently bedridden or so helpless as to be in need
of regular aid and attendance. The evidence also does not
show that the veteran is housebound. Indeed, the veteran
appeared at the November 2008 hearing before the undersigned
Veterans Law Judge. Finally, the veteran is not service
connected nor is there any evidence he has any of the
disabilities listed at 38 U.S.C.A. § 1114(k) that would
warrant SMC. The fact that he was able to testify verbally
at his hearing demonstrates that he does not have complete
organic aphonia. Therefore, as none of the criteria have
been met, the veteran is not entitled to SMC.
ORDER
Entitlement to an effective date prior to January 12, 2004
for a 10 percent evaluation for the residuals of a right
angle mandible fracture to include a surgical scar is denied.
Entitlement to special monthly compensation is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs